Analysis of SA
Net Censorship Bill 2000

Last Updated: 20 February 2001

This document is a updated version of EFA's submission on the Draft Model State/Territory legislation released for public comment in August 1999. While the drafters of the proposed South Australian Internet censorship laws (SA Bill) have made changes to the model provisions, the Bill contains most of the same flaws.

Contents:

1. Executive Summary
2. Introduction
3. Definitions and Interpretation
   1. Email and Discussion or Chat Groups
   2. Films
   3. Advertisements
   4. Matter Unsuitable for Minors
   5. Objectionable Matter
4. Application of Part
   1. Types of On-line Services
   2. Activities Not An Offence
5. Unexpected Consequences of Inserting On-line Services Part in Existing Acts
   1. Prosecution of Librarians, Teachers, Parents
   2. Sale of Unclassified Web Pages, etc. Illegal
   3. Cross Jurisdictional Issues
6. Offences
   1. Making Available Matter Unsuitable for Minors
   2. Making Available Objectionable Matter
   3. Penalties
7. Recklessness
8. Restricted Access Systems
   1. Availability and Suitability
   2. Privacy
   3. Ease of Finding Australian Content
   4. Effectiveness in Protecting Minors
   5. Declarations by State/Territory Ministers
9. Classification Issues
   1. Material Classified X
   2. Material Refused Classification (RC)
10. Australia's International Obligations
11. Conclusion
12. Appendix 1: Example Classification Assessment
    Application of Film Guidelines to Written Text:
    Eat Me, a best selling book by Australian author Linda Jaivin.

• The Online Services section of the SA Bill is profoundly flawed. Serious criminal justice issues arise necessitating amendments to ensure, at the least, that ordinary South Australians who use the Internet to communicate are treated no less fairly under criminal law than offline publishers.

• Many of the flaws in the document appear to arise from the attempt to force Internet content into a censorship regime developed for an entirely different medium, that is commercial sale and exhibition of movies and videotapes.

• Rather than address the intention that what is illegal offline should also be illegal online, it criminalises material online that is not illegal offline.

• The proposed laws subject average everyday South Australians to criminal proceedings for failure to foresee the classification that "would be" granted, from time to time, to particular material by a non-unanimous decision of members of the Commonwealth Board of the Office of Film and Literature Classification (OFLC). The recent controversy over the film 'Hannibal' highlights the fact that the OFLC Board members disagree over the boundary between MA and R content, as do many other members of the Australian community. The 'Hannibal' case is not an isolated one. No provision is made to enable Internet users who wish to do so to obtain a classification of material before publication on the Internet (and Commonwealth law does not empower the OFLC to provide same, except to the ABA and police). This is inconsistent with SA legislation regulating off-line media and treats ordinary South Australians providing on-line content less fairly under criminal law than off-line publishers of magazines and films.

• The SA Bill enables prosecution of content providers to commence prior to classification of content. While it may be argued that police would not commence proceedings against an Internet user unless they expected the OFLC to rule that particular content be classified R, X or RC, no useful purpose is achieved by enabling the possibility of police guessing wrongly. The instance of South Australian police seizing a book from an Adelaide book store (Pictures, containing photography by Robert Mapplethorpe) in January 2001 demonstrates that police are not specialists or even trained in interpretation of classification guidelines, nor should they be expected to be. The OFLC Classification Board decided that the seized book did not warrant a restricted classification (however, according to media reports of 19 February, the police have since asked the Review Board to review the lower Board's decision). In other words, the police guessed wrongly. SA police suffer no penalty for guessing wrongly, but ordinary South Australians will be prosecuted under criminal law.

• The Bill does not appear to require that "Internet content" be classified at all in order to prove an allegation, since proposed subsection 83B "Proof of classification required" specifically refers only to "a film, publication or computer game". There are also a number of other sections in the Bill and the existing Act where it appears the words "Internet content" should be added to ensure fair treatment of online publishers under criminal law.

• The OFLC has not published any classification fees for "Internet content". This indicates that, as Internet content is classified for the ABA "as if" a film, in the case of a successful criminal prosecution police would demand that the online content provider pay a classification fee of $770 (the minimum for a film for public exhibition, of 15 minutes running time) in addition to penalty. This is unjust if the material at issue is, for example, one image or a web page of text, since the fee for classification of an entire offline magazine is $130.

• Proposed penalties for making available content online are double those applicable to sale and exhibition of films off-line. The maximum penalty applicable to online content providers for making available 'films' (the definition of which apparently includes text and static images on the Internet) containing matter unsuitable for minors is $10,000 even if the content is only made available to adults. The maximum penalty for sale, delivery or exhibition of an R classified movie or video to a child offline is $5,000 and there is no penalty for sale or delivery to adults offline. Internet users should not be subject to higher penalties than offline publishers, especially when online publishers are not granted the same rights and options available to offline publishers, for example, to obtain a classification prior to publication.

• The Bill invites constant enquiry as to the particular State or Territory laws at issue as the law does not specify in which jurisdiction an offence (making available or supply) takes place. It does not define "make available" nor clarify whether content is "made available" in the State where a user downloads it, or in the State where the web server is located, or in the State where the content provider resides. If various States fail to clarify the jurisdictional aspects and, say, Tasmania or Queensland etc introduces more restrictive provisions than SA, then SA residents may commit crimes under the laws other jurisdictions. Introduction of legislation in any jurisdiction that does not clarify the jurisdictional aspects sets an undesirable precedent that is likely to have unintended consequences.

• Existing or proposed classification legislation must be amended to ensure content providers cannot be prosecuted for infringing laws/classification decisions of jurisdictions in which they are not resident. Average everyday Australians cannot be reasonably expected to know the laws of every jurisdiction in the nation, and should not be placed at risk of criminal proceedings simply because they chat and/or publish material via an uncontrollable medium that crosses state and national boundaries.

• If the Bill is passed unamended, it will be a criminal offence for adults to make available to another adult information that "would be" rated R by a non-unanimous decision of the Commonwealth Classification Board.

• During the three years ended June 2000, over 50% of films were classified R because they contained "adult themes", that is, not because of sex, violence or coarse language. According to the classification guidelines "Adult themes may include verbal references to and depictions associated with issues such as suicide, crime, corruption, marital problems, emotional trauma, drug and alcohol dependency, death and serious illness, racism, religious issues." Unless information on these types of topics is provided in a "discreet" manner, that is, "with little or no detail [verbal or visual information] and generally brief" (in accord with guidelines for an MA classification) such information will be rated R and Internet users and content providers at risk of a maximum penalty under SA criminal law of $10,000.

• The provision in the SA Bill is more onerous than existing legislation in Victoria, Western Australia and the North Territory under which it is not an offence to make R classified material available to another adult, as distinct from making it available to a minor.

• The provision is also inconsistent with Commonwealth law. The Australian Broadcasting Authority (ABA) has no power to issue a take down notice to Internet Content Hosts (ICH) relative to content it considers "would be" classified R. However, the SA Bill enables prosecution of an Internet user to commence prior to the material being classified during which time it is legal for the ICH to continue to make the material available to both minors and adults. (ICH activities are regulated by Commonwealth law, not SA law.)

• While it is a defence to a prosecution, in the SA Bill, for the defendant to prove that access to the matter unsuitable for minors was subject to an approved restricted access system, restricted access systems are administratively onerous to the extent that few Australian content hosts would be prepared to incur the costs involved in setting up and administering the relevant systems. It would be far easier to simply set up sites offshore in a country where such regulatory burdens are not imposed.

• The only approved system to date is that of the ABA which is extraordinarily privacy intrusive, requiring users to provide personal identifying information that goes far beyond proof of age, while not meeting the objective of protecting children more effectively than standard restricted access systems presently in use. The SA legislation provides no privacy protection. On the contrary, it encourages infringement of users' privacy and, further, in conjunction with Commonwealth law creates defences for businesses and content providers who infringe privacy.

• There is no obvious means by which a content provider can prove a restricted access system was in place at any given time in the past. Enforcing the use of "restricted access systems" will be the death knell for Australian content (in Australia) which requires an "adult perspective" but does not contain pornography or violence. Meanwhile minors will continue to have unrestricted access to material provided by non-Australian content providers that would be classified R.

• The SA Bill does not give content providers an opportunity to take material down when they have inadvertently mis-guessed the classification, but instead it criminalises them.

• The effect of the legislation is to implement a ban on adult discourse on social and political issues on Australian Internet sites, including on email discussion lists that are archived and in newsgroups.

• The definitions of material excluded from the proposed legislation should be widened so as to avoid the potential for Internet users to be prosecuted for participation in newsgroups or other discussion groups.

• The recklessness element of offence provisions presents an unjustifiable risk to the freedom of average everyday Australians, since the matter of how any particular material "would be" classified is not a matter of fact, it is a matter of opinion, a value judgement. It is recommended that South Australian Parliaments reject proposals to criminalise inability to foresee a non-unanimous decision of a group of people.

• Offences relative to "matter unsuitable for minors" should be deleted from proposed State/Territory legislation. Regulation of R-rated content will cripple the Australian content-hosting industry and adversely affect Australian content providers. There is no benefit in criminalising Australian content providers, or attempting to restrict content and conversation on the Australian Internet to that fit for a kindergarten, when similar material will be readily available to children on overseas sites.

• The reference to advertisements should be deleted from proposed legislation. It criminalises activity that is legal offline. Attempts to criminalise advertisements on-line are very likely to result in a raft of undesirable and unintended consequences, ranging from well-intentioned content providers becoming victims of overzealous regulation to adversely affecting the development of the Australian on-line economy.

• The classification of online content as a "film" creates a number of serious anomalies and unintended consequences. If content providers can be successfully prosecuted for making available "films" that consist of text and static images (e.g. Web pages), then under existing Classification law librarians and teachers (and others) who manage or supervise premises containing computers connected to the Internet can be prosecuted for events beyond their ability to control.

• Because it is an offence in all States/Territories to sell an unclassified film, newspaper publishers who presently sell electronic copies of archived newspaper articles online could be prosecuted.

• State and Territory Governments should not criminalise content providers who make available material that would be classified X. Many Australian adults wish to view such material and if Australian content providers are not permitted to make it available, Australian's will simply pay overseas content providers for access to such material (as well as access it on free overseas sites).

• Applying guidelines for movies to written text on the Internet has the distinct potential to result in absurd prosecutions for making available information in books and other publications that are not restricted off-line. Best selling books such as "Eat Me" by Australian author Linda Jaivin appear potentially likely to be Refused Classification online. (See Appendix 1 for a case study relative to classification of this book using film guidelines.)

• It is unreasonable for State/Territory Governments to enter into Internet regulation intended to criminalise Australians based on a classification system designed for movies or publications.

• The proposed legislation contravenes Australia's international obligations as a signatory to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). The proposed legislation will not protect children, but it will infringe adults' rights to freedom of speech and the legislated principle in Australian law that adults should be free to read, see and hear what they want.

• Legislative attempts to regulate content on the Internet should be abandoned. Publication of globally agreed illegal material can already be prosecuted under existing law, and regulations concerning contentious material are inappropriate in a world where cultural differences cannot be easily reconciled.

The SA Bill is a profoundly flawed document. As a response to the challenges of regulating the Internet in accord with the intent that "what is illegal or controlled offline should also be illegal or controlled online" it fails. It criminalises online what is not illegal offline. As a response to the challenges of complementing the Broadcasting Services Amendment (Online Services) Bill 1999 (BSA) it fails. It criminalises provision of material that is not "Prohibited Content" as defined by the BSA.

Overall the provisions exceed the intent of complementing the BSA, which is a complaints based regime, as summarised in Senator Alston's public advice that:

"... what [the BSA] does is to allow people to make complaints about offensive material, the ABA then gets those complaints assessed by the Classification Board. If they decide that they are offensive then they give the service providers or content providers an opportunity to take the material down."

[Transcript Liam Bartlett Program ABC Radio Perth, 26 May 1999
http://www.dcita.gov.au/nsapi-text/?MIval=dca_dispdoc&ID=3893]

EFA also draws attention to Senator Richard Alston's media release of 27 May 1999, apparently relative to announced public protest rallies which took place around the nation the following day:

Time for some facts on internet content debate

'It's time for some facts to be injected into the debate about the Government's internet content bill which passed the Senate on Wednesday,' the Minister for Communications, Senator Richard Alston, said today.

'This bill isn't designed to "censor the net" or to "restrict freedom of speech" or to "force websites offshore" or even to "kill the net" - as some critics and some elements of the media have claimed.
...
'The bill sets up a system so that Australians can complain to the Australian Broadcasting Authority about illegal or highly offensive material hosted on an Australian site, and establishes a system to ensure that material is removed.
http://www.dcita.gov.au/nsapi-text/?MIval=dca_dispdoc&ID=3898

The SA Bill does not give content providers an opportunity to take material down when they have inadvertently mis-guessed the classification. Instead it criminalises them. EFA believes content providers should be given the opportunity to correct a mistake they have no means of knowing they are making.

Many of the flaws in the document appear to arise from the attempt to force Internet content into a censorship regime developed for an entirely different medium, that is commercial sale and exhibition of movies and videotapes. The SA Bill errs in treating the average everyday Australians who provide the majority of Australian content free of charge as if they were commercial sellers and exhibitors of entertainment movies, while not affording them the rights and certainty granted to movie distributors.

EFA invites legislators to remember that the proposed legislation does not solely regulate the speech of companies such as Hoyts and Village Roadshow. It does not solely regulate the speech of Fairfax and Australian Consolidated Press. This legislation regulates the speech of everyone. It will regulate your speech, your children's speech, your grandchildren's speech. It will regulate the speech of everyone who chooses, of their own volition, to join the world-wide conversation known as the Internet. It is a matter of opinion whether the benefit of potentially banning a minuscule portion of the content on the global Internet, of saying "something's been done", is worth the risk of one's children being prosecuted under criminal law simply for inability to correctly guess the opinion of a group of unknown people.

Detailed comments on specific aspects of the proposed legislation are provided in the remainder of this document.

In the SA Bill "Internet content" has the same meaning as in the Commonwealth Broadcasting Services Act (BSA). "Internet content" therefore does not include "ordinary electronic email" which is not defined other than that it "does not include a posting to a newsgroup".

The SA Bill thus criminalises the on-line equivalents of some conversations in a pub, on a street corner, or at the local shopping centre. Posting material unsuitable for minors to a newsgroup, or any chat/discussion forum that is stored on the Web (eg. email discussion lists that are archived) is a criminal offence under the Bill whether or not the material is made available to minors.

EFA notes the advice of the S.A. Attorney-General, in a letter to EFA dated 30 August 1999, that "These provisions are not intended to cover ordinary electronic email, or chat or discussion groups on-line, as these are not published to the users of the service at large".

Nevertheless, the Bill does cover chat and discussion groups on-line.

3.2 Films

objectionable matter means Internet content consisting of:

(a) a film that is classified X, or that would, if classified, be classified X; or

(b) a film or computer game that is classified RC or that would, if classified, be classified RC; or ...

[Extract from SA Bill]

Offence provisions in the SA Bill refer to making available or supplying objectionable matter which, as defined above, means certain types of films, computer games and advertisements as defined in the Classification (Publications, Films and Computer Games) Act 1995 of the Commonwealth. That Act includes the following definitions:

film includes a cinematograph film, a slide, video tape and video disc and any other form of recording from which a visual image, including a computer generated image, can be produced, but does not include:
(a) a computer game; or
(b) an advertisement for a publication, a film or a computer game; or
(c) a recording for business, accounting, professional, scientific or educational purposes unless it contains a visual image that would be likely to cause the recording to be classified MA, R, X or RC;

[Extract from Commonwealth Classification Act]

computer generated image means an image (including an image in the form of text) produced by use of a computer on a computer monitor, television screen, liquid crystal display or similar medium from electronically recorded data.

[Extract from Commonwealth Classification Act]

EFA questions whether the definition of "film" could include Internet content such as text, data, static images, speech, music or other sounds. For some years, the OFLC has been classifying Internet photos and chat room discussions as publications, which are defined as "any written or pictorial matter" other than a film, computer, or advertisement for same. Apparently, either the OFLC or some law enforcement authorities are doubtful of successful prosecution on the basis of claiming that a static image or text is a "film" as defined by the Commonwealth Act. Some examples of material refused classification as publications by the OFLC, according to the OFLC publicly available database, include:

• "Eleven.jpg (Internet Photo)" - 31 January 1996
• "Internet Chat-Room Conversation - CPEA (Untitled said to be)" - 23 June 1998
• "Ten photographs - Waratah Detectives Office - NSW Police - Printed from CD" - 21 January 1999
• "Images Downloaded from Computer - File://C:\Programme\Pirch98\Downloads\" - 9 June 1999
• "A4 size computer generated photographs of naked females" - 27 July 1999

The above examples show that computer generated images and text and images from the Internet are being dealt with as publications, at least in NSW. Most examples in the database do not list the applicant's jurisdiction, but it may be assumed that NSW is not the only State prosecuting in relation to such material.

It appears that a close analysis of the definition of "film", and/or the rules of acceptable evidence, may be necessary to identify why images on CD and computer disks are presently classified as publications.

If it is established that content providers can be successfully prosecuted for making available "films" that consist of text and static images, there is no impediment to content providers also being prosecuted, regarding the same material, for offences relative to "publications". For example, a commercial content provider could be prosecuted for making available objectionable matter online and also for selling a submittable publication, since images from the Internet and computer disks are being classified as publications.

If a Web page or an image made available on the Internet meets the definition of a film under the existing Classification Act, then commercial sellers of such material, eg. commercial sites selling Internet content that would be classified X (or any other classification), may be prosecuted under existing law for the sale of unclassified films. Existing offences relative to sale of films are not limited to sale by post, courier service, or from shops, etc.

EFA recommends that definitional issues be resolved and the proposed legislation re-drafted in way that can be readily understood by persons required to enforce it as well the thousands of average everyday Australians who will be required to comply with it.

3.3 Advertisements

The definition of "advertisement" in the Classification Act is:

advertisement for a publication, a film or a computer game means any form of advertising for the publication, film or game, and includes:
(a) advertising, whether visual or audible, whether in the form of written or spoken words or other sounds and whether in a book, paper, magazine, poster, photograph, sketch, program, film or slide or in any other form; and
(b) advertising on a container or wrapping enclosing the publication, film or game; and
(c) advertising on an item of clothing advertising the publication, film or game;

[Extract from Commonwealth Classification Act]

This definition, in conjunction with offence provisions, will result in criminalising provision of a range of material online which is not illegal off-line.

Advertisements for matter unsuitable for minors (R)

In the SA Bill:

"matter unsuitable for minors" means Internet content consisting of...an advertisement for [a film that is, or would be, classified R] consisting of or containing an extract or sample from the film comprising moving images"

The SA Bill thus prohibits on-line advertising of an R classified cinema movie consisting of, or containing, an extract or sample from the film comprising moving images. The Bill makes it a criminal offence to make available such an advertisement even if the advertisement contains no material unsuitable for minors and even if it is only made available to adults (it is a defence to a prosecution for the defendant to prove that access was subject to an approved restricted access system).

However, it appears that an advertisement for an R classified movie, which did not comprise moving images, but comprised a static image (extract) from the film would not be an illegal advertisement even if the image was of itself unsuitable for minors, although it appears that the web page containing such an advertisement could be deemed to be matter unsuitable for minors and so illegal. Apparently the purpose of the reference to advertisements is to prohibit any advertisements that comprise moving images (including where the content is not unsuitable for minors) but not to prohibit all advertisements that contain text and static images. Hence, in determining whether an advertisement is illegal or not, the first issue to be considered is whether it contains moving images, not whether it contains material unsuitable for minors.

Films classified R are advertised off-line on free-to-air television, they are also broadcast on free-to-air television after cuts to comply with broadcasting law. Television broadcasters are not required to put in place "restricted access systems" preventing minors from viewing the advertisement, or a modified version of the film. Yet Village Roadshow and Hoyts, for example, will commit an offence in making available online on their Web site exactly the same advertisement that can be broadcast on television. Television broadcasters will be in breach of the law if they place an advertisement on their web site for a film that they are able to broadcast on television. Quite obviously, this legislation will criminalise on-line provision of material that is not illegal to make available to minors or adults off-line.

Attempts to criminalise advertisements on-line are very likely to result in a raft of undesirable and unintended consequences, ranging from well-intentioned content providers becoming victims of overzealous regulation to adversely affecting the development of the Australian on-line economy. EFA recommends that reference to advertisements be deleted from proposed legislation.

3.4 Matter Unsuitable for Minors

matter unsuitable for minors means Internet content consisting of a film that is classified R, or that would, if classified, be classified R, or an advertisement for any such film consisting of or containing an extract or sample from the film comprising moving images;

[Extract from SA Bill]

The above definition, in conjunction with Clause 4(1) which proscribes making available or supplying any matter unsuitable for minors, enables prosecution of content providers to commence prior to classification of material, i.e. in situations even where material is not subsequently classified R. This situation appears to arise from attempts to apply off-line classification law to on-line content without adequate consideration. See Section 3.5 Objectionable Matter which contains further explanation in this regard.

See also Section 3.3 regarding the inclusion of advertisements in the definition of matter unsuitable for minors.

3.5 Objectionable Matter

objectionable matter means Internet content consisting of:
(a) a film that is classified X, or that would, if classified, be classified X; or
(b) a film or computer game that is classified RC or that would, if classified, be classified RC; or
(c) an advertisement for a film or computer game referred to in paragraph (a) or (b); or
(d) an advertisement that has been, or would be, refused approval under section 29(4) of the Commonwealth Act.

[Extract from SA Bill]

Items (a) and (b) of the above definition, in conjunction with Clause 3 which proscribes making available or supplying objectionable matter, enable prosecution of content providers to commence prior to classification of material, i.e. in situations even where material is not subsequently classified X or Refused Classification.

This situation appears to arise from attempts to apply off-line classification law to on-line content without adequate consideration. In the off-line context, it is illegal to sell or exhibit an "unclassified film" and penalties operate on a scale dependent on the subsequent classification decision of the OFLC Board. There is, for example, a penalty for selling or exhibiting even an unclassified film which is subsequently classified "G". This is not applicable in the online context since it does not appear intended that persons who provide material free-of-charge on the Internet firstly obtain an OFLC classification. (It does appear, however, that persons selling information on the Internet can be prosecuted for selling unclassified web pages/"films"). Moreover, the BSA does not require, nor apparently empower, the OFLC to classify Internet content for any applicant other than the ABA, nor would it be practical for the OFLC to classify web pages for the thousands of Australian content providers.

There is no justification therefore for encouraging or even enabling the arrest and fingerprinting etc. of content providers prior to a decision of the OFLC Classification Board. Moreover, it should be noted that the ABA will be empowered to require ISP/ICHs to take-down "Potential Prohibited Content", i.e. material which in the opinion of the ABA is likely to be classified X or RC (objectionable matter) by the OFLC. Commencing proceedings against content providers prior to a classification decision serves no useful purpose and has the potential to traumatise ordinary Australians and their families who have committed no crime. Section 85 of the existing Act should be amended to include "Internet Content".

Of equal concern is that Item (c) of the "objectionable matter" definition enables prosecution to commence in relation to an advertisement, not only prior to it being classified, but also in situations where it advertises other matter that has not been classified but is alleged "would be" classified X or Refused Classification. Remarkably, there is no requirement for law enforcement authorities to obtain a decision on whether the matter advertised actually "would be" classified X or Refused Classification. Is this to be a new role for the criminal courts, that is, a court not only decides that objectionable matter consisting of an advertisement was made available, but that the advertised matter "would be" classified objectionable by the OFLC? Alternatively, is it sufficient for the prosecution to allege that the advertised matter "would be" classified in a particular manner? EFA trusts not and that proposed legislation will be amended to specifically preclude this possibility.

In relation to Item (c) and (d) see also Section 3.3 regarding the definition of "advertisement" in the online context.

75B (1) This Part applies to an on-line service other than an on-line service, or an on-line service of a class, prescribed by regulation.
75B (2) Nothing in this Part makes it an offence to supply objectionable matter or matter unsuitable for minors by means of an on-line service to a person, or class of persons, prescribed by regulation.

[Extract from SA Bill]

These clauses are poorly worded resulting in its meaning being unclear. Does it mean that States/Territories intend to prescribe certain types of on-line services in addition to those prescribed by the Commonwealth Broadcasting Services Act and Telecommunications Act? EFA would appreciate receiving further information regarding the intent and purpose of the clause and a copy of any relevant current or proposed regulations.

4.2 Activities Not An Offence

In the draft model legislation, Clause 75B (2) stated that "Nothing in this Part makes it an offence to supply objectionable matter or matter unsuitable for minors by means of an on-line service...to subscribers of, or participants in, a chat or discussion group". This has been deleted from the SA Bill.

The SA Bill includes the following:

75B (3) A person is not guilty of an offence under this Part by reason only of the person:

(a) owning, or having the control and management of the operation of, an on-line service, or

(b) facilitating access to or from an on-line service by means of transmission, down loading, intermediate storage, access software or similar capabilities.

[Extract from SA Bill]

This clause provides insufficient protection from criminal proceedings for persons unintentionally making available material, for example, librarians, teachers and parents, particularly in relation to existing offences in other Parts of the Acts. See Section 5.1 below.

If content providers can be successfully prosecuted for making available "films" that consist of text and static images (eg. Web pages), then under existing Classification law librarians and teachers (and others) who manage or supervise premises containing computers connected to the Internet can be prosecuted for events beyond their ability to control.

While proposed Clause 75B(3) may be intended to provide protection to such persons, it does not prevent prosecution under other (existing) Parts of the Acts.

In this regard some, perhaps all, existing State/Territory Classification Acts (see the South Australian Act for example) contain provisions similar to the following:

"exhibit", in relation to a film, means project or screen;

There is no doubt that a web page is "screened" on a computer monitor.

"public place" means any place which the public is entitled to use or which is open to or used by the public, whether on payment of money or otherwise;

This certainly covers libraries, and at least some, perhaps all, schools.

28. A person must not exhibit a film in a public place unless the film-
(a) is classified; and ...
Maximum penalty: Division 6 fine.

30. A person must not exhibit in a public place or so that it can be seen from a public place-
(a) an unclassified film that would, if classified, be classified RC or X;
or (b) a film classified RC or X.
Maximum penalty: Division 5 fine.

[Extract from South Australian Classification Act]

Hence, it is illegal to screen any "film", i.e. web page, that is not classified. It is also illegal to screen some films that are classified. Therefore, a teacher or librarian who merely has superintendence or management of a public place where an unclassified web page (film) is screened (exhibited) is apparently in breach of the law. Since the vast majority of Internet content is not classified and is unlikely to ever be classified, merely providing a computer that screens any Web page may be a criminal offence. While the potential for such a prosecution may not seem significant, it is a different matter when one considers that, for example, pornography may be inadvertently displayed on screen while a mother and child are accessing the Internet in a library. While this is beyond the control of the manager or supervisor of the library, and neither the BSA or proposed State/Territory legislation will make the slightest difference to the possibility, there is no apparent impediment to prosecution of librarians and teachers for exhibiting/screening a film/web page.

Librarians, teachers and others providing or aiding in the provision of access to the Internet have even less capacity to manage the risk of criminal prosecution for making available content provided by others than do ISPs and ICHs. Such capacity is limited to infringement of user privacy through constant monitoring of other persons' use of the Net. This is contrary to Federal law such as the Telecommunications Act, Privacy Principles and telephone interception laws.

Other sections of existing State/Territory Acts appear to present the potential for persons to be prosecuted for inadvertently screening Web pages/films in the presence of children other than their own. Since the legislation is claimed to be necessary on the ground that parents cannot control their children's access to the Internet, it is unreasonable to enable their prosecution should they allow their children's friends to join their children in accessing the Internet.

If Internet content such as a Web page is a film, then those providing access to the uncensorable Internet must be protected from prosecution for State and Federal distribution offences under all Parts of the Act. EFA calls on State/Territory governments to closely analyse and appropriately amend existing and proposed Classification legislation to eliminate apparently unintended consequences of inserting the On-line Services Part.

5.2 Sale of Unclassified Web Pages, etc. Illegal

If a Web page is a film, then commercial content providers such as the Sydney Morning Herald appear to be in breach of existing State/Territory enforcement Acts whether or not "films"/web pages they make available are objectionable. It is an offence in all States/Territories to sell an unclassified film. Newspaper publishers presently sell electronic copies of archived newspaper articles online (via provision of a Web page containing the article) without having same pre-classified as "films".

5.3 Cross Jurisdictional Issues

The jurisdictions of Western Australia, South Australia, Tasmania and the Northern Territory have reserved the power to vary/override OFLC film classification decisions. Dependent on the jurisdiction, either the Censorship Minister or Classification Boards may override OFLC decisions. Furthermore, the proposed State/Territory legislation does not specify in which jurisdiction an offence (making available or supply) takes place. It appears this could be the location of the server hosting the material, or the location of the person who uploaded the material, or the location of the person who downloaded the material.

The ABA may apply to the OFLC for classification of a "film"/Web page and the OFLC may decide it does not warrant an R, X or RC classification. However, one of the jurisdictions listed above may override the OFLC classification and classify the Web page/film R, X or RC. This raises the potential for a content provider resident in State "A" (where the OFLC decision applies) to be guilty of an offence in State "B" (where the State Minister or Classification Board has overridden the OFLC decision).

A content provider resident in State "A" may have their content hosted by an ICH whose hosting equipment is physically located in State "B" and vice versa. Is the content "made available" to be subject to the laws/classification decisions of State "A" or State "B"? In practice, a user/content provider may not necessarily know where the host server is located, or may lack any means to find out. National ISPs may have a variety of servers, several locations for Web pages or may have outsourced data storage to Singapore. Since serious criminal consequences flow, the absence of uniformity between State and Territory censorship regimes invites constant enquiry as to the particular State or Territory laws at issue and, inevitably, the imposition of a censorship regime based on the lowest common denominator - material that is legal to "make available" under the laws of every State/Territory. The most censorious State or Territory would define what is safe to make available throughout Australia, and content providers would be required to know the idiosyncracies of "community standards" and guess as to the possible decisions of Censorship Ministers or Boards in several States/Territories.

EFA submits that either existing or proposed classification legislation must be amended to ensure content providers cannot be prosecuted for infringing laws/classification decisions of jurisdictions in which they are not resident. Average everyday Australians cannot be reasonably expected to know the laws of every jurisdiction in the nation, and should not be placed at risk of criminal proceedings simply because they chat and/or publish material via an uncontrollable medium that crosses state and national boundaries.

Making available or supplying matter unsuitable for minors on on-line services

75D (1) A person must not, by means of an on-line service, make available, or supply, to another person, any matter unsuitable for minors:

(a)    knowing that is matter unsuitable for minors, or

(b)    being reckless as to whether or not it is matter unsuitable for minors.

Maximum penalty: $10,000

[Extract from SA Bill]

See comments regarding the definition of "matter unsuitable for minors" in Section 3.4 above.

EFA questions whether State/Territory Governments seriously intend to enact legislation that places every person who makes available content, that is or would be classified unsuitable for minors, in breach of the law, whether or not access to the content is subject to an approved restricted access system and whether or not such material is made available to a minor.

Clause 75D(1) unduly exceeds the claimed intent of complementing Commonwealth legislation. The BSA states that Internet content hosted in Australia is Prohibited Content if:

"(i) the Internet content has been classified R by the Classification Board; and
(ii) access to the Internet content is not subject to a restricted access system".

That is, R-rated material that is "subject to a restricted access system" is not in contravention of Commonwealth law.

The SA Bill, however, allows law enforcement authorities to prosecute providers of material that is legal under Commonwealth law, and places such content providers in a situation which is tantamount to guilty until proven innocent.

Moreover, EFA notes that governments claim that the legislation implements the rationale that "what is illegal or controlled offline should also be illegal or controlled online". The proposed legislation therefore ought not create an offence of making available or supplying R rated material to adults as it presently does. It is not illegal under any State/Territory legislation to supply off-line R-rated material to adults.

With regard to the defence offered in Clause 75D(2):

4 (2) It is a defence to a prosecution under this section for the defendant to prove that access to the matter unsuitable for minors was subject to an approved restricted access system at the time the matter was made available or supplied by the defendant.

[Extract from SA Bill]

The onus ought to be on the prosecution to prove that the matter was not subject to a restricted access system, not on the defendant to prove the reverse. The proposed legislation unjustifiably enables prosecution proceedings against any content provider whether or not a restricted access system was in place and when content was not made available to anyone other than adults. It is to add insult to injury to require a content provider to prove their innocence.

Furthermore, it is doubtful that content providers could prove that "access to the matter unsuitable for minors was subject to an approved restricted access system at the time the matter was made available or supplied by the defendant".

Firstly it is not clear whether "at the time" means at the time the material was initially made available or supplied on-line, or whether material is deemed to be "made available or supplied" at the time it is accessed by a person who subsequently draws the material to the attention of law enforcement authorities.

Secondly, there is no obvious means by which a content provider can prove a restricted access system was in place at any given time in the past.

The BSA does not require either the ABA, the OFLC, or an Internet Content Host (ICH) or Internet Service Provider (ISP) to inform a content provider that their content is subject to an investigation or has been or will be classified. Given the time taken for criminal cases to reach the courts, it is quite possible that the ISP or ICH may have closed business, for example, fled the country to more information technology friendly jurisdictions. In such instances, the content provider would have no opportunity to call the ICH/ISP as a witness in support of a defence that the material was subject to a restricted access system at any past time.

What will be acceptable proof that a restricted access system was in place? For example, will content providers need to obtain, at the time they first make the material available, a sworn affidavit from their ICH/ISP, or from the ABA, or from a yet to be specified entity? Will they need to obtain a fresh affidavit each day, lest the ICH/ISP's access security system fails due to technical inefficiency or error on the part of the ICH/ISP, or resulting from criminals hacking into the ICH/ISP's system, or any other reason?

This legislation places average everyday Australians who make available material which could be deemed unsuitable for minors, by non-unanimous opinion of the OFLC Board, at the risk of criminal penalties for events completely beyond their control. Governments have apparently accepted that it is unreasonable and unjust to hold ISPs liable for the content of others. It is now time that governments accept that it is equally unreasonable and unjust to hold content providers liable for the technical operations of their ICH/ISP's servers and systems. Content providers have no control whatsoever over whether their ICH/ISP maintains the security of a restricted access system.

Furthermore, there is an anomaly between the treatment of ISPs/ICHs and content providers in regard to provision of unclassified material which would be classified unsuitable for minors. ISP and ICH's are authorised by the BSA to continue to host and provide access to material likely to be rated R after the ABA becomes aware there is a substantial risk it would be rated R. According to Senator Richard Alston's statements in the second reading speech of the BSA "Interim take-down notices have been limited to RC and X-rated content rather than R-rated content (without adult verification) because of the generally less serious nature of R-rated material."

EFA submits that content providers should not be subject to prosecution for provision of unclassified material which "would be" classified R given provision of this material is sanctioned by Commonwealth law because of its less serious nature.

Furthermore, Commonwealth and proposed State/Territory legislation does not provide any control whatsoever on overseas sites providing material that is or would be classified R. The imposition of access control systems on Australian sites will therefore have no effect on the unrestricted availability of R-rated material to minors, since it only affects a small part of the 1 or 2% of the content hosted in Australia that has been complained about and subsequently classified by the OFLC. In order to protect children from material that would be classified R, there will be an ongoing need for parents and educators to supervise the access of those in their care.

Regulation of R-rated content will cripple the Australian content-hosting industry and adversely affect Australian content providers. Nevertheless, the BSA enables the taking down of R-classified material by ICH/ISPs. There is no benefit in criminalising Australian content providers, or attempting to restrict content and conversation on the Australian Internet to that fit for a kindergarten, when similar material will be readily available to children on overseas sites.

EFA recommends that offences relative to "matter unsuitable for minors" be deleted from proposed State/Territory legislation.

6.2 Making Available Objectionable Matter

Making available or supplying objectionable matter on on-line service

75C A person must not, by means of an on-line service, make available, or supply, to another person, objectionable matter:

(a)    knowing that is objectionable matter, or

(b)    being reckless as to whether or not it is objectionable matter.

Maximum penalty: $10,000

[Extract from SA Bill]

As detailed in Section 3.5, the definition of objectionable matter enables prosecution of content providers to commence prior to classification of material, that is, even in situations when they have not made available material that would be classified X or Refused Classification. While it may be argued that police would not commence proceedings against a content provider unless they expected the OFLC to rule that particular content was X or RC, no useful purpose is achieved by enabling the possibility of police guessing wrongly.

The instance of South Australian police seizing a book from an Adelaide book store (Pictures, containing photography by Robert Mapplethorpe) in January 2001 demonstrates that police are not specialists or even trained in interpretation of classification guidelines, nor should they be expected to be. The OFLC Classification Board decided that the seized book did not warrant a restricted classification. The role of the police is to enforce the law, not guess what it is. The ABA is empowered to require ICH/ISPs to take down material they believe would be Prohibited Content prior to obtaining an OFLC classification decision.

The proposed legislation subjects average everyday Australians to criminal proceedings for failure to correctly assess the classification that "would be" granted, from time to time, to particular material by the members of the Board of the Office of Film and Literature Classification. This is inconsistent with State/Territory legislation regulating off-line media and treats average everyday Australians providing on-line content less fairly under criminal law than off-line publishers.

In the off-line environment, movie/film, video and computer game distributors are required to apply and pay for a classification from the OFLC. Once a classification is granted, the distributor/ seller/ exhibitor has an absolute defence to criminal liability for distribution of the material, provided they comply with any restrictions on distribution relative to the classification. In the off-line environment, it may therefore be considered reasonable to prosecute distributors in relation to sale, advertising, exhibition and distribution of material that "would be" given a particular classification. They are required, by law, to obtain a classification and can thus reasonably be expected to know that they are engaged in a criminal act in distributing films, videos and computer games that have not been classified. This is quite different from requiring them to guess what classification "would be" given by the OFLC Board.

In the on-line environment, it is clearly impractical to require the thousands of Australian content providers, from teenagers to senior citizens, from non-profit organisations to companies selling products, to pay for and obtain a classification prior to publishing information on a Web page, content that is most often made available free of charge. Both the BSA and the proposed State/Territory legislation appear to recognise the impracticality of requiring content to be classified prior to publication. Moreover, while the BSA empowers the OFLC to classify Internet content on application from the ABA, it does not appear to empower or require the OFLC to classify Internet content for any other entity or person.

The remedy for impracticality should not, however, be to prosecute average everyday Australians for incorrectly assessing the classification that "would be" granted by the OFLC as proposed in the SA Bill. Decisions of the OFLC Classification Board are not required to be unanimous and often are not. The Classification Review Board from time to time disagrees with a classification granted by the Classification Board. Given individual members of these Boards, trained in interpreting the Classification Acts, the National Classification Code and the Classification Guidelines are unable to agree on a classification, it is clearly unjust to prosecute average Australians for failure to correctly foresee the decision of the Board members.

Furthermore, as distributors of movies are unable to correctly assess how the Classification Boards would classify material, it is even less likely that people who do not regularly deal with the OFLC can. For example, Mr Mark Gooder, Head, Film Division, REP Film Distributors advised the Senate Legal and Constitutional Legislation Committee on 13 April 1999 as follows:

Senator COONEY -Mr Gooder, you were talking about Passion. Clearly, you did not expect that to receive an R classification, so you went ahead and spent money that you felt need not have been spent; that was the attitude you went there with. Is there any way you can get an idea of how a classification is going to work out?

Mr Gooder -The only way is to make an assessment based on script. If you are buying the film at script then, obviously, you can identify certain scenes that may effect an R rating or a rating higher than a M.

Senator COONEY -Your comment was-if I understand this-that you had to go back twice for a thing that you thought would clearly not get the R classification.

Mr Gooder -Absolutely. We were doing it at the tail end of the current climate raised by the film Lolita. So, questionably, there may have been some reaction to this film on the basis of the current climate, which we could not predict.

Senator COONEY -Because you were making a film about an Australian composer, and you thought it would be taken on that basis.

Mr Gooder -Absolutely, it had what we call 'general art-house appeal', which would appeal to 25- to 55-year-olds, mainly women. We thought it did not have anything offensive in it, and the fact is that an R rating can damage your access in the marketplace to that demographic. We have also had experiences historically with other films. We had another Australian film, which was a children's film called The Real Macau, on which we went through an appeal process, because we believed the film should just get a G rating, rather than the PG rating it was given. We won at the end of the day but, again, it cost us a fair bit of money.

The difficulties inherent in attempting to assess how the OFLC Classification Board would classify particular material will be exacerbated by the requirement that Internet content be classified using guidelines for films. Film guidelines were developed for entertainment material involving moving images and sound on the basis that such material has more impact on the viewer than written text and static images. Film guidelines are therefore more restrictive than guidelines for publications and applying them to Internet content is very likely to result in material that is legally available in publications off-line being illegal on-line. In addition, film guidelines are written in a manner that makes their interpretation relative to written text and static images extremely difficult if not impossible.

The matter of knowledge and recklessness in regard to offence provisions is addressed in Section 7 below.

6.3 Penalties

Proposed penalties concerning making available content online are double those proposed in the Schedule to the Bill relative to sale and exhibition of films off-line.

The Bill provides for a maximum penalty of $10,000 for making available matter unsuitable for minors online, that is, including when it is made available only to adults. However, the proposed maximum penalty for sale or delivery of a film classified R to a minor offline is $5,000 (Section 42(1)) and there is no penalty for sale or delivery to adults. Similarly, the maximum penalty applicable to a person who exhibits a film classified R to a minor offline (eg. cinema owners) is $5,000 (Section 35(1)).

Penalties for making available matter unsuitable for minors online should be less, not more, than those applicable to people who directly sell or deliver an R classified film to a minor offline. In addition, the Bill should be amended to exclude penalties for making available R classified material to adults online, since this is not illegal offline.

5 Recklessness

5 (1) A person is reckless as to whether matter is objectionable matter or matter unsuitable for minors if-

(a)    the person is aware of a substantial risk that the matter is objectionable matter or matter unsuitable for minors, and

(b)    that having regard to the circumstances known to the person, it is unjustifiable to take the risk.

5 (2) The question of whether taking a risk is unjustifiable is one of fact.

[Extract from SA Bill]

The recklessness element of offence provisions present an unjustifiable risk to the freedom of average everyday Australians from a legal system gone mad. The matter of how any particular material "would be" classified is not a matter of fact, it is a matter of opinion, a value judgement.

EFA questions whether the drafters of the proposed legislation, or any politician intent on enacting this legislation, or planning to vote in favour of it, has carefully read and considered any of the following documents:

1. OFLC Guidelines for the Classification of Films and Video Tapes
2. Decisions of the OFLC Classification Review Board overruling decisions of the OFLC Classification Board
3. Community Assessment Panels Report, prepared for the OFLC by Keys Young, 15 June 1998

Persons intending to enact this legislation who have not made a serious attempt to gain a good understanding of the classification process could arguably be accused of both recklessness and wilful blindness. Those who have read the above or similar documents will be well aware that there is a risk that any detailed discussion of "adult themes" - which apart from matters involving nudity, sex or violence include "verbal references to and depictions associated with issues such as suicide, crime, corruption, marital problems, emotional trauma, drug and alcohol dependency, death and serious illness, racism, religious issues" - could foreseeably possibly be classified unsuitable for minors, or perhaps even objectionable in some instances given the application of film guidelines to written text. In the MA classification, treatment of adult themes is required to be "discreet". Discreet is defined as "with little or no detail and generally brief". Thus any discussion of adult themes that is not "with little or no detail and generally brief" carries a risk of being classified R, unsuitable for minors.

Furthermore, an analysis of the Community Assessment Panels Report (June 1998) reveals that of the total classification assessments made by the average everyday Australians on the panels, 51% of their classification decisions were not the same as the decisions made by the OFLC Classification Board. 29% of the classifications were lower than the Board's and 22% higher. For example, in the case of the film "One Eight Seven", the only R classified film the panels were asked to assess, 7 people gave it an MA classification, 8 people gave it an R classification and 2 people refused classification.

If these people had been deciding whether or not to place particular content on the Internet, on the basis of their assessments 7 of 17 of them would be guilty of an offence under this legislation unless they could convince a criminal court that they could not have foreseen there was a risk the material would be rated R.

Under this proposed legislation content providers are damned if they make a genuine attempt to comply with the law and damned if they do not.

Content providers who make an effort to interpret the guidelines and assess the classification, but who make the wrong guess will likely find themselves in court. The defence they are offered is that they did not know, and were not aware of a substantial risk, that the matter was/would be illegal. If they claim this defence, they will then be accused of being reckless as to risk. To prove they were not reckless they need to show, at least, that they tried to interpret and comply with the guidelines. In so doing, they admit they were aware of a substantial risk that they could be wrong because the guidelines are vague, broad, subjective and the "correct" classification depends on a decision of the Classification Board, a decision which is not, under the law, required to be unanimous.

Furthermore, in cases where content providers have placed unclassified material online, the Classification Board will be making a classification assessment in the knowledge that their decision makes the difference between whether or not a person will be charged with a criminal offence. This is not the case when they classify offline movies and videos because it is an offence to sell/exhibit any unclassified film or video offline.

Decisions made by the various members of the Classification Board from time to time may depend not only on their interpretation of the guidelines and personal reaction to the material but, inter alia, on the extent to which members have been subjected to criticism by politicians claiming they are releasing child pornography into the community without such politicians having even seen the film, and the extent to which they may have been subjected to arguably harassment and attempts to intimidate by certain members of certain Senate Committees.

It also must be remembered that all on-line content is to be subject to classification under guidelines for films, even in cases where content consists entirely of written text. The potential effects of this may be seen by attempting to classify a book using film guidelines. An example is provided in Appendix 1 which contains an analysis of the possible classification assessment of the first chapter of the best selling book, "Eat Me", by Australian author Linda Jaivin. This book is legally sold unrestricted in Australian bookshops. The first chapter is also Internet Content, it is on-line at http://libertus.net/liberty/odocs/eatme_ch1.html. The analysis concludes that there is a risk that this chapter could be classified R or X or Refused Classification under guidelines for films. Some, if not many, people may consider the risk is substantial. Readers are invited to make their own assessments.

While it is apparent that the Commonwealth Government wishes to reduce the content of Australian adults' discourse on the Internet to that suitable for children, EFA considers there is no merit or benefit in State and Territory Governments enacting a regime of intimidation and fear. This legislation will have no effect on some 98% of the content on the Internet which originates in other countries.

EFA calls on State and Territory Governments not to enact a regime enabling prosecution of average everyday Australians who, no matter how much they try, cannot be sure of making the "correct" value judgements as to classifications. Classifications that "would be" granted are not a matter of fact, they are a matter of opinion. Content providers cannot know they are committing an illegal act in placing content on-line because they cannot know what decision the OFLC would make until after the material has been placed on-line and classified by the OFLC.

The proposed legislation is the equivalent of asking movie producers to classify their own films then criminalising them if their opinion differs from a narrow majority opinion of the OFLC Classification Board. The OFLC effectively becomes a jury, but without the need for unanimity.

In the event governments are determined to enact criminal law, EFA invites legislators and Ministers to consider that while you may not be an Internet user, and while your children may not be content providers, your grandchildren will most likely be both. Is the benefit of potentially banning less than 1% of the content on the world-wide Internet, of saying "something's been done", worth the risk of your grandchildren facing imprisonment for failure to guess correctly?

EFA urges State/Territory Governments to reject proposals to enact laws effectively criminalising inability to foresee a non-unanimous decision of a group of people.

75D (3) In this section:
approved restricted access system means:

(a) a restricted access system within the meaning of the Commowealth Broadcasting Act; or

(b) any other system of limiting access declared by the Minister, by notice published in the Gazette, to be an approved restricted access system for the purposes of this definition.

75D (4) A notice declaring a system of limiting access to be an approved restricted access system may be varied or revoked by the Minister by subsequent notice pubished in the Gazette.

[Extract from SA Bill]

8.1 Availability and Suitability of Systems

In the eighteen months since the Commonwealth Parliament passed the BSA, only one "restricted access system" has been approved under that Act by the ABA.

EFA's comments on that system are available in a separate paper. In summary, the system is administratively onerous to the extent that few Australian content hosts would be prepared to incur the costs involved in setting up the relevant systems. It would be far easier to simply set up sites offshore in a country where such regulatory burdens are not imposed. The system is extraordinarily privacy intrusive, requiring users to provide personal identifying information that goes far beyond proof of age, while not meeting the objective of protecting children more effectively than standard restricted access systems presently in use. Identification details are easily forged, demonstrating conventional wisdom that effective age-authentication systems are almost impossible to implement on the Internet. The system is totally out of step with the essential character of the Internet as a public communication medium.

Information about other presently available "restricted access systems" is provided below.

EFA submits that there is a fundamental misunderstanding among policy makers and legislators as to the type of restricted access systems presently available which claim to restrict access to particular content on the Internet to adults. While these systems require Internet users to enter a PIN number or password (Adult Check type services), or a credit card number, in order to access material, they do not prevent children from accessing the material, however they do infringe adults' privacy.

Access by PIN Number/Password ("Adult Check" Type Services)

Many providers of sexually explicit material require users to pay a fee to a different service provider for a PIN number or password prior to being granted access to material on their site. The providers of these PIN numbers/passwords pay web site operators a percentage of the fee paid by the user. Web site operators place an advertisement for the PIN number/password service on their own site. When users click on this advert to go the other site, the PIN number provider receives notification of the site the user was visiting and thus knows which web site operator to pay for the business/referral. Use of such systems by web site providers is as likely to be a money making exercise as a claimed means of keeping children away from their content.

Providers of PIN numbers/passwords advertise that these are instantly available on filling in a web form and providing a credit card number for payment. It is thus highly unlikely that the providers verify that the user of the credit card is an adult at any time, let alone before they are provided with a PIN number/password and thereby granted access to material, nor is it apparent how they could verify the user's age. Most, probably all, providers of PIN numbers/passwords are located outside Australia, although they do provide PIN numbers/passwords to Australians.

It is clearly impossible for any PIN number/password provider, ISP or content provider to know who is actually at the other end of an Internet carriage service line applying for a PIN/number password or accessing a web site using same.

Some banks provide credit cards to minors and minors may "borrow" a credit card number from their parents unbeknown to them. While parents may notice an authorised charge of some $20 on their credit card bill, this may not occur until some two months after the PIN number/password was provided. During that time harm, if any, that may be suffered by minors in accessing R-rated content will likely have occurred.

Moreover, without unauthorised use of a credit card, minors may be told of a PIN number/password by friends, or may obtain a PIN number/password from lists available on web sites.

Access by Credit Card Number

Another form of "restricted access system" is to require users to provide a credit card number prior to accessing content. This is presently used only by commercial sites who require payment for products or services. Few sites charge for information. While the marketing model works for popular adult sexually explicit sites, it is well known that Internet users will rarely pay (regardless of their financial circumstances) to access other sites.

The proposition that non-commercial Australian sites commence requiring credit card numbers presents a number of problems.

Extra features such as scripting and server configuration are required to implement systems restricting access to persons providing credit card numbers. Most content providers do not have the technical knowledge or funding to set up such systems themselves. Furthermore, the technology necessary to implement such systems is often unavailable to small content providers whose content is hosted by ISP/ICHs who do not offer them the technical means to restrict access due to technical and security issues, costs, etc.

In cases where either the content provider or their ISP/ICH is technically and financially able to restrict access by requiring credit card numbers other problems arise.

Legislation provides for the declaration of "approved restricted access systems" and requires providers of R-rated content to use such systems. If, for example, a system requiring users to enter a credit card number was approved, there is no requirement for the content provider to check the validity of the credit card number or the age of the user of the credit card. In such a circumstance, an Internet user may enter any group of 16 digits.

If the approved system includes a requirement that the content provider check that the credit card number complies with the check algorithm, an Internet user may simply download one of the credit card number generator algorithms freely available on the Internet and create a number.

If the approved system includes a requirement that the content provider or ISP/ICH check that the credit card number belongs to a bona fide account, then government will need to legislate that banks and other credit card providers must provide free-of-charge services to verify validity of credit card numbers in cases where no sale is to take place. It is highly questionable whether banks and other credit card providers will greet such a government requirement with enthusiasm, however absent their co-operation there is no means by which persons providing content free-of-charge are able to verify the bona-fides of a credit card number.

In circumstances when the bona-fides of a credit card number can be verified, Internet users, both adults and minors, may use credit card numbers belonging to their parents, relatives, friends, enemies, employers or indeed politicians should they happen to have that information. Since no sale is taking place, the misuse of credit card numbers is unlikely to be identified by the owner of the credit card. Meanwhile a trail suggesting they have accessed numerous sites of varying content will be left around the Web.

8.2 Privacy

Australians have long evidenced serious concerns about their privacy. Almost all web traffic consists of private communications - personal access to information. Users expect privacy for this in the same way that they expect their library borrowing records to be private.

Requiring users to obtain and use PIN numbers/passwords, or provide credit card numbers, enhances the ability of ISPs, web site operators, etc., to monitor and track Internet users' activities and interests. It may therefore result in such information, as well as their personal information provided to obtain a PIN number/password, being used for marketing and other purposes without their knowledge or permission. Privacy laws in Australia do not control the use of personal information by the private sector, eg. providers of PIN numbers/passwords, ISP/ICHs, or web site operators. Neither the BSA or proposed State/Territory censorship legislation provides any privacy protection. On the contrary, these encourage infringement of users' privacy and, further, create defences for businesses and content providers infringing on same.

8.3 Ease of Finding Australian Content

Search engines do not index material protected by access controls. Small sites that cannot afford advertising depend on search engines to draw visitors. Many sites contain content that would be rated in different categories. Without the resources to classify their content, content providers will be forced to take the safe option and "protect" the entire site, thus restricting access to material which is not even R-rated. This will result in it being difficult for adults to find information they seek. Information on non-Australian sites will be easier to find than Australian content.

8.4 Effectiveness in Protecting Minors

EFA contends that the proposed use of "restricted access systems" in relation to material that is or would be classified R presents more problems than it solves. In fact, it does not solve any problem.

Commonwealth and proposed State/Territory legislation does not provide any control whatsoever on overseas sites providing material that is or would be classified R. In addition, the Commonwealth regime is complaints driven. Content will not be classified unless a complaint is lodged with the ABA and the ABA decides to obtain a classification from the OFLC, or, the ABA seeks out and submits content for classification of their own volition.

The imposition of access control systems on Australian sites will therefore have no effect on the unrestricted availability of R-rated material to minors, since it only affects the 1 or 2% of content hosted in Australia. Regulation of R-rated content will, however, cripple the Australian content-hosting industry and adversely affect Australian content providers. It will disproportionately hurt smaller, and particularly non-commercial, content providers.

Many, if not most, Internet users will not bother going through a verification procedure. On the Web, attention spans are short and barriers to access are low. Even a minor extra barrier will deter people. A simple registration requirement has this effect and a requirement to obtain and use an adult ID, with all the privacy concerns that raises, will deter almost all visitors who will instead access overseas sites.

Users and businesses will opt to host their content overseas, where they simply do not have to worry about attempting to restrict access. They will either use one of the many overseas services that host content free of charge, or pay overseas services to host their content.

Enforcing the use of "restricted access systems" will be the death knell for Australian content (in Australia) which requires an "adult perspective" but does not contain pornography or violence. Meanwhile minors will continue to have unrestricted access to material provided by non-Australian content providers that would be classified R.

8.5 Declarations by State/Territory Ministers

75D (3) In this section:
approved restricted access system means:

...

(b) any other system of limiting access declared by the Minister, by notice published in the Gazette, to be an approved restricted access system for the purposes of this definition.

75D (4) A notice declaring a system of limiting access to be an approved restricted access system may be varied or revoked by the Minister by subsequent notice pubished in the Gazette.

[Extract from SA Bill]

EFA recommends that in addition to publishing relevant notices in the Gazette, the legislation require notices to be made available on a prominent government Web page established for the purpose of ensuring that average everyday Australians are able to ascertain the state of the law in this regard without the need to purchase a subscription to the Gazette.

Although the stated intent of the censorship regime is that "what is illegal or controlled offline should also be illegal or controlled online", the regime as proposed will result in material that is legally available to adults off-line being illegal on-line. For example, the equivalent of Category 1 and 2 Restricted publications or at least some images and articles from them, will in effect be Refused Classification on-line. This will occur because guidelines developed for the combination of moving images and sound (movies) are applied to text and static images (publications) on the Internet, resulting in the probability of images equivalent to those in Category 1 or 2 Restricted publications being classified X (non-violent sexually explicit material) online.

In October 1997 during a speech at Murdoch University, Federal Attorney-General Darryl Williams explained the basis of Australia's censorship system, that is, the concept of classifying material on the basis of the views of reasonable adults. He said:

The 'reasonable adult' test is used in two different senses - as a measure of community standards and also as an acknowledgment that adults have different personal tastes.

The 'community standards' test, to be taken into account in making classification decisions, refers to 'the standards of morality, decency and propriety generally accepted by reasonable adults'. It is usually applied in the context of refusing classification to material.

One of the criteria for determining whether a film should be classified 'R' or 'X' or a publication given a restricted classification is whether the material is 'likely to cause offence to a reasonable adult'. This is the other sense in which the 'reasonable adult' test occurs and acknowledges that individuals may have different personal tastes. In other words, although some reasonable adults may find the material offensive, and thus justify a restricted classification for it, others may not. They should be allowed to have access to the material if they wish.

EFA submits that, at least in the on-line context, effect should be given by Commonwealth, State and Territory governments to the concept that "although some reasonable adults may find [non-violent sexually explicit] material offensive, and thus justify a restricted classification for it, others may not. They should be allowed to have access to the material if they wish."

EFA submits that the current bans on sale of X classified videos are misguided and result from misinformation.

In 1988, the Joint Select Committee on Video Material recommended "a new category NVE (non-violent erotica) be instituted" to precisely define the material contained within the X category. No evidence was found that viewing such material causes harm. Although implications to the contrary are promulgated by some people from time to time, the majority of the Joint Select Committee did not recommend a ban on all non-violent erotica.

In 1992, Dr Berl Kutchinsky (a criminologist from the Institute of Criminology, University of Copenhagen, whose work was published in the International Journal of Law and Psychiatry) informed a conference held by the Australian Institute of Criminology of the findings of his research during the prior twenty or so years. He said that:

The aggregate data on rape and other violent or sexual offenses from four countries where pornography, including aggressive varieties, has become widely and easily available during the period we have dealt with would seem to exclude, beyond any reasonable doubt, that this availability has had any detrimental effects in the form of increased sexual violence. Especially the data from West Germany are striking since here the only increase in the sexual violence takes place in the form which includes the least serious forms of sexual coercion and where there may have been increases in reporting frequency. As far as the other forms of sexual violence are concerned, the remarkable fact is that they decreased -- the more so, the more serious the offense.

The finding is not so strange. Most other research data we have about pornography and rape suggest that the link between them is more than weak. And our knowledge about the contents, the uses and the users of pornography suggests that pornography does not represent a blueprint for rape, but is essentially an aphrodisiac, that is, food for the sexual fantasy of persons -- mostly males -- who like to masturbate.

The policy implications of this conclusion are, of course open to debate. But as mentioned earlier, the mainstream attitude would seem to be a combination of two movements;
(1) To reduce the area of total prohibition and censorship to a minimum, and
(2) to implement a variety of restrictions, suitable of each form of pornography, in order to obtain maximum protection of children, and of adults who want no confrontation with the material.

Banning pornography is potentially dangerous for women and children. In Denmark in the late 60's, the incidence of sex crimes, sexual violence towards women and children, dropped markedly when pornography was made freely available. In 1967, erotic material in Denmark was removed from the obscenity statute. This resulted in sex crimes in Denmark, which had been stable from 1958 to 1966, decreasing by 25 percent in 1967, 13 percent in 1968 and 30.5 percent in 1969.

It seems clear that bans in Australia reflect attempts to enforce the "community standards" desired by some people on other people, rather than reflecting community opinion or attempting to prevent harm. Surveys and opinion polls conducted since 1992 by the OFLC, the ABA and reputable public opinion research organisations have consistently shown that 70% (or more) of Australian adults believe that non-violent sexually explicit material should be available to adults who wish to view it.

Australia is becoming one of the few English-speaking countries that continue to deny adults the freedom to publish and read sexually explicit material. In this regard, a recent decision in Britain is notable.

In August 1999, the British Board of Film Classification (BBFC) announced the Video Appeals Committee's ruling that the Board should not have banned seven sex videos containing sexually explicit material, including "Office Tart" and "Nympho Nurse Nancy". The Committee ruled that each work should have been granted an 'R18' certificate allowing their sale through licensed sex shop premises. The VAC found by a majority of 4 to 1 that the Board was wrong to conclude that the video works breached the provisions of the Video Recordings Act because they had the potential to cause harm to children. The majority (four to one) accepted the argument that "we do not, in general, prevent adults having access to material just because it might be harmful to children if it fell into their hands. We might have taken a different view if there was evidence that the effects were affecting more than a small minority of children or were devastating if this did happen."

For further information see:

BBFC Announcement, 16 August 1999.

http://www.bbfc.co.uk/website/AboutUs.nsf/fdd3ea3928 b74b588025659f00363313/ 1dc7cbd8f0949b5a802567bd005498ba?OpenDocument

EFA calls on State and Territory Governments not to criminalise content providers who make available material that would be classified X. Many Australian adults wish to view such material and if Australian content providers are not permitted to make it available, Australian's will simply pay overseas content providers for access to such material (as well as access it on free overseas sites). The Commonwealth legislation has minimal effect on the availability of on-line material to those who wish to view it. Obviously, to encourage Australian's to spend their money overseas is detrimental to Australia's economy, in addition to contravening Australia's international obligations as a signatory to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR).

Of significant concern in the area of RC material is the criminalisation of text thought to incite or instruct in matters of crime. In this area, access to the variety of material on the Internet may include access to material that would not be a suitable subject for a movie, but may be harmless in context. For example, bans on teaching burglary techniques should not also ban a lockmaker's web site providing information to locksmiths.

In Australia, the OFLC's decision on the La Trobe University Student Journal Rabelais article, leading to prosecution for publication of Refused Classification material, is a dangerous precedent for the OFLC's entry into Internet classification. There are many books banned in Australia (such as "E is for Ecstasy" or "Steal This Book") which are legal in most other English-speaking countries. To automatically classify contentious material of this sort as RC on the Internet would lead to absurd prosecutions.

EFA submits that the decision in Michael Brown and Ors v. OFLC, to the extent that it may represent Australian law, is a matter for law reform by the Commonwealth and States. It could not be considered a reasonable position for the RC classification to extend to matters outside the Brandenburg v. Ohio definition:

"Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."

As the decision presently stands, descriptions of Mahatma Gandhi's campaign of non-violent civil disobedience would be Refused Classification by the OFLC.

The potential for well-intentioned Australians, from teenagers to grandparents, to become unwitting victims of overzealous regulation is highly disturbing.

While it may be argued that Australians may have a reasonable understanding of what is permitted in publications and movies off-line from reading and viewing same, this is not actually a useful guide. For example, while the student editors of Rabelais were prosecuted for publishing material claimed to instruct in matters of crime, the August-September 1998 edition of Colors (the magazine of United Colors of Bennetton) included a six page article titled "Breaking and Entering". This article contained interviews with "Technical Advisors", i.e. house breakers, and provided detailed instructions (including text and explanatory drawings) on how to break into houses. Attention was drawn to the article in the Sydney Morning Herald of 31 August 1998. Nevertheless that edition of Colors magazine was not banned, was not even classified and remained on sale, to both adults and children, in Australian newsagents.

On the global Internet, users may access a wide range of material which would be banned on Australian sites, yet Governments plan to expect them to know that they may be penalised under criminal law for publishing the same or similar information.

One wonders whether university students, for example, would realise that making available a thesis documenting in detail torture in prisons may be a criminal offence on grounds that it "instructs in matters of crime". In the event such content would not be refused classification, it is not likely to escape being rated "unsuitable for minors" requiring access to be subject to a restricted access system. In any case, what justification can reasonably be presented for punishing Australians who make available such material, while academics in other countries may make such material available to anyone on the Internet. While the OFLC is required to consider educational merit as well as protection of minors from material likely to harm or disturb them, it will be a matter of sheer guesswork for content providers as to which aspect would take precedence in the opinion of a majority of the members of the OFLC Classification Board.

Applying guidelines for movies to written text on the Internet has the distinct potential to result in absurd prosecutions for making available information in books and other publications that are not restricted off-line. Best selling books such as "Eat Me" by Australian author Linda Jaivin appear potentially subject to restriction online. Appendix 1 provides a case study relative to classification of this book using film guidelines.

EFA calls on the State/Territory Governments not to enter into Internet regulation intended to criminalise Australians with classifications so inflexible and simplistic as those developed for movies or publications.

While claims may be made that offence provisions will only be used and/or prosecuted in the most exceptional cases of undoubted criminality, EFA submits that this is improperly relying on the discretion of police and prosecutors to apply a bad law. In the case of the student editors of Rabelais, after some 4 years, and much public criticism of the decision to press charges, the Director of Public Prosecutions dropped the charges without explanation. It is preferable that bad laws enabling ludicrous prosecutions, and associated waste of taxpayers' funds, not be enacted in the first place.

"One of the great changes that have come over Australia in the past six months is that people do feel able to speak a little more freely and a little more openly about what they feel."
- Prime Minister John Howard (circa 1996)

It is commendable that the Prime Minister apparently favours freedom of expression, or did at the time of making that statement. However, there is a disturbing trend towards an increasingly repressive censorship regime in all media in Australia. While such measures invariably claim "protecting the children" as an objective, they deny the rights of adult Australians to read, see and hear what they want and they deny parents' responsibility for safeguarding their children.

The Internet censorship legislation is a primary example. It will not achieve the claimed aim of protecting children, but it will infringe adults' rights to freedom of speech and the legislated principle in Australian law that adults should be free to read, see and hear what they want.

The legislation contravenes Australia's international obligations as a signatory to the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR). The ICCPR forms Schedule 2 of the Human Rights and Equal Opportunity Commission Act 1986. Article 19 of the ICCPR states:

1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
   (a) For respect of the rights or reputations of others;
   (b) For the protection of national security or of public order (ordre public), or of public health or morals.
http://www.austlii.edu.au/au/legis/cth/num_act/hraeoca1986512/sch2.html

EFA draws to attention that the legislation will infringe the rights of Australian citizens under clause 19(2) and is not "necessary" as set out in clause 19(3).

While Commonwealth and State/Territory censorship legislation will restrict Australian's freedom of speech and may inconvenience them in accessing content on the Internet, they will be wholly unsuccessful in terms of protection of "national security or of public order (ordre public), or of public health or morals". In fact, such attempts may have the reverse affect in preventing Australian citizens from accessing information necessary for protection of public health, given the type of information filtering technology is notorious for blocking (eg. information about safe sex and AIDS). It remains unclear the extent to which ISPs may enforce the use of such technology in future in order to avoid criminal liability themselves.

The Internet is a world-wide communication system which all Australian Governments, like the Malaysian and Singapore Governments, must accept they cannot control. The restrictions on freedom to seek, receive and impart information and ideas of all kinds will not be mitigated by the tiny quantity of information on a global network that Australian Governments' censorship regime might successfully ban.

EFA submits that legislative attempts to regulate content on the Internet should be abandoned. Publication of globally agreed illegal material can already be prosecuted under existing law, and regulations concerning contentious material are inappropriate in a world where cultural differences cannot be easily reconciled.

The physical location of Internet content is a matter of little relevance. A content provider in any Australian State or Territory can have content hosted elsewhere in Australia or any other country. Realistically, to deny Australian content hosts the right to host content legal and protected elsewhere is to make Australian sites uniquely disadvantaged in a global market.

EFA strongly supports the principle that content creators rather than carriage service providers should be responsible for online content, and that criminal culpability for such content should apply only to material that is globally and unequivocally recognised as illegal.

All commentators accept that there is some Internet content that is universally condemned, and some consider international efforts to eradicate it are capable of success. EFA submits that seeking to achieve global agreement on the definition would be an appropriate response by all Australian Governments intent on making an effective contribution to dealing with criminal content. Obviously, the narrowest definitions of illegal content are most likely to be successfully prohibited - a wide definition that includes material routinely available in other countries and protected as free speech in the United States (such as material classified R and X and the vast majority of material Refused Classification in Australia) would be pointless and unenforceable. International agencies such as Interpol have no interest in investigating erotica.

The oft-quoted issue of "protection of minors from exposure to material that may be harmful to them" invites debate over the means to that end. In the event that parents consider that filtering Internet content is a desirable alternative to adequately teaching minors to deal with all types of Internet content, this is best achieved with personally chosen software programs and services and proper supervision appropriate to age and maturity. The increasing emergence of specialist content providers for children will reduce the need for supervision in some cases. Minors are not all impressionable victims nor hardened hackers, and parents are better placed than Governments to determine whether a problem exists with their child's use of the Internet. The development of a range of online services and market forces are a better means of giving parents control over their children's activities.

As President Clinton resolved, following the defeat of the Communications Decency Act, it is the role of the police to track down paedophiles and terrorists - and it is up to parents to supervise their child's use of the Internet.

Existing classification legislation and laws of general application enable State and Territory police to prosecute persons engaged in child abuse and terrorism who may use the Internet just as they use the telephone, mail and roads. If there is a problem in enforcing existing laws, EFA contends that this is most likely to be associated with insufficient liaison between Commonwealth and State and Territory police forces and insufficient funding of police for training purposes and resources necessary to track down criminals who use the Internet. EFA recommends that funds proposed to be used in enacting and enforcing the proposed legislation to criminalise merely controversial speech instead be directed to increased funding of police forces.

EFA again draws attention to the statements of Senator Alston:

"... what [the BSA] does is to allow people to make complaints about offensive material, the ABA then gets those complaints assessed by the Classification Board. If they decide that they are offensive then they give the service providers or content providers an opportunity to take the material down."

[Transcript Liam Bartlett Program ABC Radio Perth, 26 May 1999
http://www.dcita.gov.au/nsapi-text/?MIval=dca_dispdoc&ID=3893]

and:

Time for some facts on internet content debate

'It's time for some facts to be injected into the debate about the Government's internet content bill which passed the Senate on Wednesday,' the Minister for Communications, Senator Richard Alston, said today.

'This bill isn't designed to "censor the net" or to "restrict freedom of speech" or to "force websites offshore" or even to "kill the net" - as some critics and some elements of the media have claimed.

EFA urges State and Territory Governments to abandon attempts to censor content on the Internet.